This is a writ of error to a judgment of the Circuit Court
of Kentucky, brought to reverse the decision of that Court
on a bill of exceptions.

The suit was ejectment, by Barney, brought to recover a
part of a tract of fifty thousand acres of land, in possession
of Mr. Hawkins, within the limits of his patent. Both parties
claimed under Virginia patents, of which Barney's was
the eldest. The plaintiff below proved a grant to Barbour,
and a conveyance from the patentee to himself. The defendant
below proved a grant to one May, a conveyance
from May to Creemer, and from Creemer to himself. He
then proved that Creemer entered into possession under
May, in 1796, and resided on the land so conveyed to him,
until he sold to defendant below; who has had peaceable
possession of the premises ever since, until the present suit
was brought, which was May 4th, 1817.

This state of facts brings out the principal question in
the cause, which was on the constitutionality of the present
limitation act of that state, commonly known by the epithet
of the seven years law. The Court charged the jury in favor
of Barney, and the verdict was rendered accordingly.

It is now argued that, by the seventh article of the compact
with Virginia, Kentucky was precluded from passing
such a law. And that this Court has, in fact, established this
principle, in their decision against the validity of the occupying
claimant laws.

I am instructed by the Court to say that such is not their
idea of the bearing of that decision.

On the subject so often and so ably discussed in this
Court and elsewhere, and on which the public mind has
so long pondered, it would be an useless waste of time to
amplify. A very few remarks only will be bestowed upon
it.

The article reads thus: "All private rights and interests
of lands within the said district, derived from the laws of
Virginia prior to such separation, shall remain valid and
secure under the laws of the proposed state, and shall be
determined by the laws now existing in this state."

Taken in its literal sense, it is not very easy to ascribe to [Volume 3, Page 483]
this article any more than a confirmation of present existing
rights and interests, as derived under the laws of Virginia.
And this, in ordinary cases of transfer of jurisdiction,
is exactly what would have taken place upon a known
principle of international and political law, without the
protection of such an article. We have an analogous case
in the thirty-fourth section of the judiciary act of the
United States; in which it is enacted that the laws of the
several states shall be rules of decision in the Courts of the
United States; and which has been uniformly held to be
no more than a declaration of what the law would have
been without it: to wit, that the lex loci must be the governing
rule of private right, under whatever jurisdiction
private right comes to be examined.

And yet, when considered in relation to the actual subject
to which this article was to be applied, and the peculiar
phraseology of it; there will be found no little reason for
inquiring whether it does not mean something more than
would be implied without it; or, why it was introduced if
not intended to mean something more. It had an almost
anomalous subject to operate upon.

I perceive that in the copy of Littell's laws, which has
been sent to our chambers, some one has had the perseverance
to go over the legislation of Virginia, relating to
the lands of Kentucky whilst under her jurisdiction, and
to mark the various senses to which the word rights has
been applied, in the course of her legislation. It is curious
to observe how numerous they are. Her land system was
altogether peculiar, and presented so many aspects in
which it was necessary to consider it, in order to afford
protection to the interests imparted by it, that it might,
with much apparent reason, have been supposed to require
something more than the general principle to secure
those interests. So much remained yet to be done to impart
to individuals the actual fruition of the sales or bounties
of that state, that there must have been, unavoidably,
left a wide range for the legislative and judicial action of
the newly created commonwealth. When about then to
surrender the care and preservation of rights and interests,
so novel and so complex, into other hands, it was not
unreasonably supposed by many, that the provisions of the
compact of separation were intended to embrace something
beyond the general assertion of the principles of international
law, in behalf of the persons whose rights were
implicated in, or jeoparded by the transfer.

Such appears to have been the view in which the majority
of this Court regarded the subject in the case of Green
vs. Biddle; when upon examining the practical operation
of the occupying claimant laws of Kentucky, upon the
rights of land-holders, they were thought to be like a disease
planted in the vitals of men's estate, and a disease
against which no human prudence could have guarded
them, or at least no practical prudence, considering the
state of the country, and the nature of their interests. And
when again upon looking through the course of legislation
in Virginia, there was found no principle or precedent to
support such laws, the Court was induced to pass upon
them as laws calculated in effect to annihilate the rights
secured by the compact, while they avoided an avowed collision
with its literal meaning. But in all their reasoning on
the subject, they will be found to acknowledge, that whatever
course of legislation could be sanctioned by the principles
and practice of Virginia, would be regarded as an
unaffected compliance with the compact.

Such, we conceive, are all reasonable quieting statutes.
From as early a date as the year 1705, Virginia has never
been without an act of limitation. And no class of laws is
more universally sanctioned by the practice of nations, and
the consent of mankind, than laws which give peace and
confidence to the actual possessor and tiller of the soil.
Such laws have frequently passed in review before this
Court; and occasions have occurred, in which they have
been particularly noticed as laws not to be impeached on
the ground of violating private right. What right has any
one to complain, when a reasonable time has been given
him, if he has not been vigilant in asserting his rights? All
the reasonable purposes of justice are subserved, if the
Courts of a state have been left open to the prosecution of
suits for such a time as may reasonably raise a presumption
in the occupyer of the soil that the fruits of his labour
are effectually secured beyond the chance of litigation. Interest
reipublicae ut finis sit litium;--and vigilantibus non
dormientibus succurrit lex; are not among the least favoured
of the maxims of the law.

It is impossible to take any reasonable exception to the
course of legislation pursued by Kentucky on this subject.
She has in fact literally complied with the compact in its
most rigid construction: for she adopted the very statute
of Virginia in the first instance, and literally gave to her
citizens the full benefit of twenty years to prosecute their
suits, before she enacted the law now under consideration.
As to the exceptions and provisos and savings in such statutes,
they must necessarily be left in all cases to the wisdom
or discretion of the legislative power.

It is not to be questioned that laws, limiting the time of
bringing suit, constitute a part of the lex fori of every
country: they are laws for administering justice; one of the
most sacred and important of sovereign rights and duties:
and a restriction upon which must materially affect both
legislative and judicial independence. It can scarcely be
supposed that Kentucky would have consented to accept a
limited and crippled sovereignty; nor is it doing justice to
Virginia to believe that she would have wished to reduce
Kentucky to a state of vassalage. Yet it would be difficult
if the literal and rigid construction necessary to exclude
her from passing this law were to be adopted; it would be
difficult, I say, to assign her a position higher than that of
a dependant on Virginia. Let the language of the compact
be literally applied, and we have the anomaly presented of
a sovereign state governed by the laws of another sovereign;
of one half the territory of a sovereign state hopelessly
and forever subjected to the laws of another state.
Or a motley multiform administration of laws, under
which A would be subject to one class of laws, because
holding under a Virginia grant; while B., his next door
neighbour, claiming from Kentucky, would hardly be conscious
of living under the same government.

If the seventh article of the compact can be construed
so as to make the limitation act of Virginia perpetual and
unrepealable in Kentucky; then I know not on what principle [Volume 3, Page 484]
the same rule can be precluded from applying to laws
of descent, conveyance, devise, dower, courtesy, and in
fact every law applicable to real estate.

It is argued, that limitation laws, although belonging to
the lex fori, and applying immediately to the remedy, yet
indirectly they effect a complete divesture and even transfer
of right. This is unquestionably true, and yet in no wise
fatal to the validity of this law. The right to appropriate a
derelict is one of universal law, well known to the civil law,
the common law, and to all law: it existed in a state of
nature, and is only modified by society, according to the
discretion of each community. What is the evidence of an
individual having abandoned his rights or property? It is
clear that the subject is one over which every community
is at liberty to make a rule for itself; and if the state of
Kentucky has established the rule of seven years negligence
to pursue a remedy, there can be but one question
made upon the right to do so: which is, whether, after
abstaining from the exercise of this right for twenty years,
it is possible now to impute to her the want of good faith
in the execution of this compact.

Virginia has always exercised an analogous right, not
only in the form of an act of limitation, but in requiring
actual seating and cultivation.

In the early settlement of the country, the man who received
a grant of land and failed, at first in three, and
afterwards in five years, to seat and improve it, was held
to have abandoned it: it received the denomination of
lapsed land, was declared to be forfeited (Mercer's Abr.;)
and any one might take out a grant for it. The last member
of the eighth article of this compact, distinctly recognises
the existence of the power in Kentucky to pass similar
laws; notwithstanding the restrictions of the seventh
article, and also the probability of her resorting to the policy
of such laws. It restricts her from passing them for six
years: and what is remarkable, the protection of this restriction
is expressly confined to the citizens of the two
states; leaving the plaintiff below, and all others, not citizens
of Virginia, to an uncontrolled exercise of such a
power. Forfeiture is the word used in the old laws, and
forfeiture is that used in the compact, and the term is correctly
applied; since it supposes a revesting in the commonwealth:
and it is remarkable how scrupulously Kentucky
has adhered to the Virginian principle in her seven
years law, since the benefit of it is confined to such only as
claim under a grant from the commonwealth; thus literally
applying the Virginian principle, of a revesting in the
commonwealth and a regranting to the individual.

Upon the whole, we are unanimously of opinion that the
Court below charged the jury incorrectly on this point;
and if it stood alone in the cause, the judgment would be
reversed. But as it must go back, there are two other
points raised in the bill of exceptions which it is necessary
to consider here.

The one is upon the sufficiency of the power of attorney
executed by John to Robert Oliver, and under which the
latter executed a deed to Barney to revest in him the fee
simple of the land. Upon looking into that instrument, we
are satisfied that although not professional in its style and
form, it contains sufficient words to support the deed; and
there was no error in the decision of the Court as to this
point.

The other question is one of more difficulty. Upon the
face of the deed from Barney to Oliver, and the reconveyance
from Oliver to Barney, there are recited several conveyances
of parcels of the tract granted to Barbour, to several
individuals, and particularly to one of eleven
thousand acres to one Berryman. The case on which the
instruction was prayed makes out that Barney proved
Hawkins to have trespassed within the limits of the fifty
thousand acres; but it was insisted that he ought also to
have proved the trespass to be without the limits of the
tract shown to have been conveyed away by himself. On
the other side it was insisted that the onus lay on Hawkins,
to prove that his trespass was within the limits of one of
those tracts, and the Court charged in favour of Barney.

This we conceive to be no longer an open question; it
has been solemnly decided in a series of cases in Kentucky,
that the party, offering in evidence a conveyance containing
such exceptions, is bound to show that the trespass
proved is without the limits of the land so sold or excepted.
3 Marshall, 20. 6 Littell, 281. 1 Monroe, 142.

The only doubt in this case was as to which of the two
parties this rule applies, since both, and Hawkins first in
order, produced in evidence a deed containing the exceptions.
But, whether by the exceptions or by the deed,
Hawkins's purpose was answered if he proved the whole
land out of Barney. Not so with Barney; for in the act of
proving the reinvestment of the estate in himself, he
proved it to be with the exceptions mentioned, and therefore
the rule unquestionably applied to him.

From these observations it results, that the Court below
erred in refusing to instruct the jury according to the
prayer of Hawkins; to wit, "that if they believed the evidence,
the plaintiff, Barney, had no right of entry when
this suit was instituted, and that unless he showed that the
eleven thousand acres recited to be conveyed to Berryman
by Barney did not cover the land in question, he was not
entitled to recover in that suit."

The judgment is reversed, and the cause remanded for
a venire facias de novo.